In my experience, everyone supports the right to freedom of speech, as long as it’s their own speech or the speech of people they agree with. But most speech falls outside that category. Most people would ask: why support the right of people to say things you hate, or fear or that you regard as dangerous?
That’s an intuitively reasonable question. I like some of what some people say, am indifferent to a lot of what is said and think we’d all be better off if some of what is said was never said. I’d be happy if Kanye West never uttered another word. I’d be delighted if Donald Trump went silent.
In 1968, when the racist George Wallace, a Democratic governor of Alabama, was running as a third-party candidate for president of the United States, I defended his right to speak at a stadium owned by New York City, after the then mayor had banned him from using that platform. There was, at that time, no one whose speech I despised more than Wallace’s. I considered him, and his candidacy, a credible danger to the fundamental rights I was spending my life trying to protect. Nor was that a unique case. Many speakers whose right to speak I defended during my 34 years at the American Civil Liberties Union (ACLU) expressed views I disagreed with, some of which I thought were bigoted and dangerous.
So why did I do it? Why defend the right of people to express views when such people, if they gained the power to do so, would eliminate my views, and maybe eliminate me?
For me, the answer is strategic. I can never be certain who will have political power. I can never be certain that the only people who get elected will agree with me. I know – because it has happened many times – that people will gain political power who will, if they can, act to punish me or people I agree with, because of our views. So what I need is an insurance policy. I want insurance against the probability that people in power will suppress or punish me for my views.
In a democracy, the majority rules. I support that, of course. But I don’t want the majority to rule everything. If the majority is white, I don’t want the majority to tell black people they can’t vote. If men are in power, I don’t want them telling women they can’t use contraceptives. If there are more Christians than Jews or Muslims, I don’t want the Christian majority forcing non-Christian kids to recite Christian prayers in public schools. And if heterosexuals are the majority, I don’t want them to be able to deny jobs to homosexuals, or put them in jail. Nor do I want anyone to have the power to discriminate against transgender people.
None of these examples is fanciful. All of them have happened in America for most of our history. And to the extent that we have been able to limit or end such majoritarian abuses of power, it has been because of legal limits on majority rule. Those limits, in the US, are primarily set forth in amendments to our constitution, amendments which protect rights by limiting democratic power.
For example, the First Amendment protects the right to free speech and assembly by barring the government from abridging such rights. That is how I was able to stop the mayor of New York from banning George Wallace from speaking in 1968. Why did I do it? Because what if George Wallace had been elected? He had already been elected as governor of Alabama. He was trying to get elected as president (and he had considerable support). If he had gained political power, he would not have hesitated to suppress or punish my speech, or the speech of others I supported.
So I needed an insurance policy. I needed a legally supreme rule that barred him from curbing my speech in case he gained political power. And in order to do that, I needed to stop the then mayor of New York, a liberal whom I supported, from using his power to silence Wallace, a reactionary whom I feared. The two were linked because the antagonist of liberty is always power. And because power is fickle and unpredictable.
In a democracy, you can never know who will have power. So all power must be limited in order to protect liberty, including speech. That’s what liberty is: a legal limit on democratic power. The right to freedom of speech is guaranteed only by limiting the power of any government to abridge it. By defending George Wallace’s right to speak when he doesn’t have power, you insure against his curbing your right to speak should he gain power.